Equal Rights Amendment seems to be very frightening to the Arizona Republican Party. On April 27, the sponsor of the Arizona ERA (HCR2012), Rep. Pamela Powers Hannley, D-Tucson, moved for it to be heard on the full House floor because it had been buried in committee without a hearing. To avoid a public vote, the speaker of the House quickly held a recess vote that was passed along party lines and scurried out.
On May 1, it was moved by Senate Minority Leader Katie Hobbs, D-Phoenix, to suspend the rules and vote on the Senate version (SCR1003), but that procedural move was also defeated along party lines. Ironically, the Republican Party was the first to adopt the ERA on its party platform in 1940. The Democrats did not adopt it until 1944. Unfortunately the Republican Party removed the ERA from its platform in 1980. Retired Supreme Court justice Sandra Day O’Connor was the first legislator to introduce the ERA in Arizona. A ratification resolution has been introduced in the Arizona House or Senate or both every year since before1982. Yet it has not been heard.
Many people think the ERA has already passed or that the 14th Amendment already protects women. Then-Supreme Court Justice Scalia said in 2010 that the equal protection provisions of the Constitution do not protect women. Until 1971, courts ruled that in fact the 14th Amendment did not give women any protection. Reed v. Reed, the first successful case started a change. By 1976, the Supreme Court ruled in Craig v. Boren that laws that were based on sex would have “intermediate scrutiny” when challenged. The analysis of sex discrimination cases was slowly inching toward “strict scrutiny,” like race and color discrimination, until 1996 when the U.S. v. Virginia decision made it clear that litigation and the 14th Amendment will not bring equality to women under the Constitution.
Some people think the ERA is not necessary. After all we have Title VII to prohibit employment discrimination and Title IX to prohibit discrimination in schools; we have equal pay laws; we have laws against sexual harassment; and beating or raping your wife is now a crime. But a law is not a constitutional guarantee; a law can be changed; a law can be overturned. In spite of these laws, women are still discriminated against at work and school, still paid less, and still beaten and raped.
Some argue that it’s foolish to vote for the ERA because the “time has run out.” There is no time limit on adopting a Constitutional amendment. The 27th Amendment that prohibits Congress from raising its own salaries was first proposed in 1789 and ratified in 1992 – 202 years later. The 1982 deadline for the ERA was a Congressional resolution passed after the ERA already had 35 ratifications of the 38 it needed. Nevada passed it in March 2017 requiring only two more states.
Some states have attempted to rescind ratification but it has been held moot. No doubt those who fear women’s equality will sue on that basis. Those who opposed it before will drag out the same old arguments though there is not much left of those. Women already serve in the military in nearly all capacities. We already have same sex marriage. Women have the right to abortion though it has been attacked daily since 1973. But there is the bathroom issue that will no doubt be resolved in the Supreme Court, at least as to transgender people, as now two Circuit Courts (4th and 7th) have opposing rulings on the issue.
The real argument against the ERA is that it will debase women by knocking them off their pedestal. The basis behind that argument is that women are “better” than men (therefore on a pedestal) and that women need protection from men. But domestic violence and murders and rapes of women continue unabated. The men women need protection from are most likely to be their intimate partners and family members – not some stranger. Countries (primarily Scandinavian) where women are more equal and have the most political power also have the least violence against women. Countries where women are the most unequal and have the least power also have the most violence against women. As feminists have said all along; it’s not about sex, it’s about power.
The U.S. is one of the few countries absent a guarantee of women’s equality in its Constitution. As of 2011, 35 countries had an equality provision for women in their constitution; 49 had a non-discrimination provision in their constitution for women, and 29 countries had both. Many of these countries have such provisions because of U.S. intervention (either military or aid related), while we remain the outlier.
The ERA is the only method left to ensure women’s constitutional equality. The ERA has enjoyed massive public support for decades. Yet in Arizona, a state with historic high levels of women in the state Legislature, several women governors and at one time, five top state offices held by women, it can’t even get a hearing. What are they afraid of?
— Dianne Post is an international human rights attorney and coordinator of Central AZ National Lawyers Guild
The views expressed in guest commentaries are those of the author and are not the views of the Arizona Capitol Times.